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Luis Burgos-Cintron A/K/A Luis Burgos v. Augustus Nyekan

September 19, 2011

LUIS BURGOS-CINTRON A/K/A LUIS BURGOS,
PLAINTIFF,
v.
AUGUSTUS NYEKAN, JR., JAMES SOUTH, MARK CUNARD, RICHARD BUMBERA, NEW JERSEY DIVISION OF STATE POLICE, NEW JERSEY DIVISION OF STATE POLICE - STRATEGIC INVESTIGATIONS UNIT, STATE OF NEW JERSEY, AND JOHN DOES 1-10,*FN1 DEFENDANTS.



The opinion of the court was delivered by: Hon. Joseph H. Rodriguez

RODRIGUEZ, Senior District Judge:

OPINION

This is a civil rights action stemming from the allegedly unlawful arrest, imprisonment, and prosecution of Plaintiff Luis Burgos-Cintron. Plaintiff asserts that he was wrongfully imprisoned for over ten months as a result of Defendants' violation of his rights. Through this action, he seeks "attorney's fees and costs, compensatory, statutory, and punitive damages," as well as "equitable, injunctive and other relief." (Compl. ¶ 1.) Before the Court is Defendants' motion for summary judgment. Oral argument on the motion was heard September 13, 2011, and the record of that proceeding is incorporated here. For the reasons given that day, as well as those set forth below, the motion will be granted.

In addition, the Court notes that the Complaint describes I. Edward Fallon, a detective with the U.S. Marshal's Service Fugitive Task Force, as a "non-party," (Compl. ¶ 8), but then goes on to caption certain counts as asserted against Fallon.

Background

Plaintiff has alleged that on October 4, 2007, he received a phone call from his sister stating she and Plaintiff's mother separately had been contacted that day by unknown members of the New Jersey State Police Strategic Investigations Unit ("SIU") and U.S. Marshal's Service Fugitive Task Force ("Task Force"), indicating that they were looking to speak with Plaintiff regarding an attempted murder. Plaintiff went to his mother's house and returned the Task Force call, speaking to Fallon. Plaintiff assured Fallon that he had not had any role in an attempted murder; a mistake must have been made. In response, Fallon allegedly advised Plaintiff to remain at his mother's house so that he could be picked up to go the Camden County Prosecutor's office to clear up the confusion.

The Complaint alleges that Defendants James South, a Detective Sergeant First Class with the SIU, and Mark Cunard, a Detective Sergeant with the SIU, then went to Plaintiff's mother's house, knocked on the door and asked for Plaintiff, and proceeded to arrest him when he appeared. At his deposition, Plaintiff testified that he was arrested by Cunard and Defendant Nyekan. The arresting officers allegedly did not ask Plaintiff any questions or tell him why he was being arrested, despite his demands for information. Instead they allegedly told Plaintiff, "you know you did it." (Compl. ¶ 28.)*fn2

The officers also allegedly advised Plaintiff that his "accomplice," Joseph Thompson, had already been arrested and whoever "talked" first would "get the best deal." Plaintiff had no idea what had occurred, and did not know of Thompson.

After his arrest, Plaintiff learned of the circumstances that led the authorities to arrest him. In or around 2001, Plaintiff used "Luis Santiago" as an alias in an attempt to avoid criminal prosecution for drug charges. The attempt failed, and Plaintiff was arrested under that name, charged, and imprisoned as a result of his actions. On or about September 15, 2007, the Camden City Police Department began to investigate the attempted murder of Kareem Parker. On that date, Parker had gotten into a physical altercation with Thompson. At some point during the altercation, an individual identified as Luis Santiago pulled a gun from his waist and began firing at Parker. Plaintiff notes that he does not own a gun. In addition, the description of Santiago provided to the Police Department's Officer Hendricks was a Hispanic male, 5 feet tall, with braids in his hair. (Incident Report, Ex. A to Complaint.) In contrast, Plaintiff is approximately 6 feet tall, weighs approximately 270 pounds, and at all times material had short, cropped hair.

At some point, the investigation of the above 2007 incident was transferred from the Camden City Police Department to the State Police, where Defendants Richard Bumbera, a Detective Sergeant, and Augustus Nyekan, Jr., a trooper, took over the investigation on September 18, 2007. On September 20, 2007, Bumbera and Nyekan went to Parker's house to interview him regarding the shooting. Parker was hesitant to speak "on the record," but identified the suspects as Thompson and Santiago, including that he went to high school with the two. (Bumbera Dep., p. 10-11.)

In addition, Bumbera and Nyekan identified a witness to the above incident, George Brown, Sr., from a surveillance video and Brown's presence during Bumbera and Nyekan's interview of Parker. Brown also identified the suspects as Thompson and Santiago and gave a sworn statement that he went to high school with the two and has known them since that time. (Supplementary Offense Report, Ex. B to Complaint.)

Nyekan wrote, "Photos of Thompson and Santiago were generated [at the "shoot team office"] through PictureLink and shown to Brown [and Parker] to confirm their identity. Brown confirmed the photos by informing us that he grew up with them and know who they are." (Id.) Bumbera testified that Parker also said, "I went to school with them. I went to school with them. I know them. I know them my whole life. I know who they are." (Bumbera Dep., p. 11.) On October 1, 2007, Nyekan prepared a warrant for the arrest of Luis Santiago and forwarded it to the State Police Fugitive Unit.

Plaintiff has learned that Parker, Brown, Santiago, and Thompson attended Camden High School. Plaintiff also attended Camden High School, beginning in or around 1996 and leaving approximately two years later, prior to Parker, Brown, Santiago, and Thompson's attendance. Thus, Plaintiff did not go to school with Parker, Brown, or Thompson. Further, Plaintiff has testified that he does not know Parker, Brown, Santiago, or Thompson.

Brown further told Bumbera and Nyekan that he and Santiago had been involved in an verbal dispute on September 13, 2007, in New Jersey at the same store where the attempted murder occurred. Plaintiff alleges that he supplied the prosecutor with information showing that on September 13, 2007, he was working in Philadelphia, Pennsylvania during the alleged altercation between Brown and Santiago. Plaintiff also alleges that he supplied the prosecutor with statements from family members and friends who stated that Plaintiff was with them from approximately 1:30 p.m. until 9:30 p.m. on the date of the shooting, which occurred at or around 2:30 p.m.

Further, Plaintiff asserts that Bumbera and Nyekan used unduly suggestive identification procedures to Brown, in that they did not follow the New Jersey Attorney General's Guidelines established to improve police procedures and to ensure the accuracy of identifications. Per the Guidelines, Plaintiff contends that the lineup should have included a photo that resembled the suspect's description or appearance at the time of the incident if multiple photos of the suspect are reasonably available. Bumbera and Nyekan showed Brown only one photograph of Plaintiff, taken at or around his 2003 release from jail for the 2001 drug offenses. Plaintiff alleges that this photograph did not substantially portray how Plaintiff looked at that time (2007), as the photograph showed Plaintiff's hair in braids. When Plaintiff was arrested ...


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